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Wednesday, June 30, 2010

From a June 29 Press Release of Gov. Patterson (emphasis and italics supplied):

"Legislation Would Restore Insolvent System to Fiscal Stability; Gradually Bring Benefits into Line with Other States; Strengthen Penalties for Fraud

Governor David A. Paterson today announced that he has submitted legislation to repair the State’s broken system for Unemployment Insurance (UI). Currently, the State’s UI fund is $3.2 billion in deficit, and as a result New York employers will be forced to pay interest penalties estimated at over $1.265 billion over the next eight years if no action is taken. Moreover, the maximum benefit has been fixed at $405 since 2000, and as a result, has been significantly eroded by inflation, as well as New York’s share of federally funded extended unemployment benefits are subject to severe limitations.

“In my tenure, I have sought to bring fiscal responsibility to State government, and I cannot achieve that goal while leaving our system for providing unemployment insurance insolvent,” Governor Paterson said. “This bill would place that system on firm financial footing, while creating a responsible and gradual path to bringing benefits into line with wages, and ensuring that our most vulnerable citizens are protected in times of economic crisis.”

The Governor’s bill would gradually increase the maximum benefit available to beneficiaries of the UI program to starting at $475 in January 2011 until it is indexed in July 2018 to 50 percent of New York’s average weekly wage. Currently 35 states provide for an index of 50 percent or more. This legislation would also ensure that the UI fund pay for all benefits resulting from unemployment due to compelling family reasons so they won’t be unfairly passed on to employers who bear no responsibility.

This bill would also:

Establish a minimum benefit of $75.

Increase the taxable wage base on which UI contributions are calculated from the current $8500 to $14,000 on January 1, 2018. In 2019, the taxable wage base would be set at 18% of the average annual wage, but would increase if the trust fund is too small at year’s end and decrease if the fund meets a sufficiency threshold. Eliminate the lowest tax brackets for employers with positive experience ratings; at present employers in these brackets pay very little in UI taxes, which makes the creation of a solvent system impossible without placing extraordinary burdens on other employers.

Increase and index the wage thresholds that trigger employer obligation to pay UI contributions, so that they increase as wages do.

Double the time by which an individual can re-qualify for unemployment for individuals who are terminated for misconduct, refuse a job or leave a job without good cause, to produce savings for employers.

Lower the number of employees an employer must have to be eligible for the Shared Work Program from five to two.

New York State Labor Commissioner Colleen Gardner said: “The State’s UI system is a critical safety net, which provides stimulus in times of recession and essential funds for individuals and families in need. The enactment of Governor Paterson’s proposal is essential to ensuring that this vital program continues to function effectively for all New Yorkers.”

The New York State Department of Labor estimates that the Governor’s proposal would bring the Trust Fund into solvency in 2015, three years earlier than projected under current law, and save nearly $3.3 billion in additional taxes and $634 million in UI loan interest that would otherwise be paid by the State’s employers from 2011-2018. Additionally, by implementing a gradual increase in benefits, and various cost saving measures, this legislation would reduce costs to business by over $1 billion over the next eight years, compared with similar bills currently under consideration in the Legislature."

Those portions in bold will be of interest to Employers, those in Italics to Claimants. If passed, Employers will certainly allege misconduct in almost any case. Again, something I heard once: "Do not rely on Unemployment Insurance as an income - if you have a job, do anything in your power to keep it".

Tuesday, June 29, 2010

So the Claimant's request for a hearing was timely, the Claimant had a hearing but the Admistrative Law Judge upheld the DOL's adverse determination. The first thought is to appeal to the Appeals Board. From the Appeals Board website:

"APPEAL TO THE APPEAL BOARD:

What can I do if I don’t agree with the judge’s decision?

If you were at the hearing and lost all or part of the case, you may file an appeal to the Appeal Board. The decision will contain instructions explaining how to file an appeal. You can appeal in writing, either by letter sent to the Appeal Board at PO Box 15126, Albany, NY 12212-5126, or by fax to 402-6208. Your letter must include the ALJ Case Number (which is listed on the decision above the claimant’s name).

An appeal must be postmarked or faxed no later than 20 days after the date printed or stamped on the front of the ALJ decision. The 20-day time period includes all weekends and holidays.

If you did not come to the hearing but believe you had a good reason for not being there, you can apply to reopen the case by writing to the Administrative Law Judge Section. You should include an explanation why you did not attend the hearing."

Monday, June 28, 2010

Here is another decision from the Appellate Division, 3rd Department on the issue of a Claimant's timely request for a hearing highlighting the Claimant's need to establish a valid excuse for any delay:

IN RE LEWIS, 69 A.D.3d 1088, 892 N.Y.S.2d 664[3d Dept 2010]

In the Matter of the Claim of MARTIN LEWIS, Appellant. COMMISSIONER OF LABOR, Respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 1, 2008, which ruled that claimant'srequest for a hearing was untimely.

Martin Lewis, New York City, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City (Bessie Bazile of counsel), for respondent.

By initial determination mailed on June 18, 2008, the Department of Labor found that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed. In addition, the Department found that he had been overpaid $171 and that he had made false statements in order to obtain benefits and, therefore, reduced his right to receive further benefits by 16 days. Claimant did not request a hearing until August 9, 2008. The Commissioner of Labor objected to the timeliness of the request and, following various proceedings, the Unemployment Insurance Appeal Board ruled that claimant's request was untimely, prompting thisappeal.

We affirm. A claimant who is dissatisfied with an initial determination must request a hearing within 30 days of the date that it is mailed, unless physical or mental incapacity prevents him or her from doing so (see Labor Law § 620 [1] [a]; Matter of Briggs [Commissioner of Labor], 52 AD3d 1081, 1082 [2008]; Matter of Dada [Commissioner of Labor], 41 AD3d 1079, 1079-1080 [2007]). Here, while claimant admitted that he received the initial determination within a week of its rendering on June 18, 2008, he admittedly failed to request a hearing until August 9, 2008 and proffered no valid excuse for doing so. As such, we find no basis for disturbing the Board's decision (see Matter of Briggs [Commissioner of Labor], 52 AD3d at 1082; Matter of Palumbos [Commissioner of Labor], 32 AD3d 1060 [2006]).

Sunday, June 27, 2010

The Appellate Division, 3rd Department has recently issued some decisions on the issue of a Claimant's timely request for a hearing. Here's one - and as you can see, Claimants must have a mental or physical disability as an excuse for any delay:

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 18, 2009, which ruled that claimant's request for a hearing request was untimely.

Dwayne Wright, Newark, New Jersey, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City (Bessie Bazile of counsel), for respondent.

Before: Cardona, P.J., Peters, Rose, Kavanagh and McCarthy, JJ.

MEMORANDUM AND ORDER

After he was terminated from his position as an assistant manager with a shipping and receiving company, claimant applied for unemployment insurance benefits. The Department of Labor mailed an initial determination on October 3, 2008 denying his claim. Claimant waited until December 5, 2008 to request a hearing. At the hearing, the Commissioner of Labor objected to its timeliness. The Unemployment Insurance Appeal Board sustained the timeliness objection and upheld the initial determination. Claimant appeals.

We affirm. It is undisputed that claimant failed to request a hearing within 30 days of the date that the initial determination was mailed as required by Labor Law § 620 (1) (a) (see Matter of Lewis [Commissioner of Labor], 69 AD3d 1088 [2010]; Matter of Baird [Commissioner of Labor], 54 AD3d 466, 467 [2008]; Matter of Briggs [Commissioner of Labor], 52 AD3d 1081, 1082 [2008]). The proffered reason for his failure to make the request sooner was that he had difficulty focusing due to fact that he was moving from place to place. Inasmuch as this did not constitute a reasonable excuse for the delay (see Matter of Baird [Commissioner of Labor], 54 AD3d at 467) and claimant has not demonstrated that he suffered from a mental or physical disability that precluded him from requesting a hearing within the 30-day time period (see Matter of Martinez [Commissioner of Labor], 52 AD3d 1137, 1137 [2008]; Matter of Briggs [Commissioner of Labor], 52 AD3d at 1082), we find no reason to disturb the Board's decision.

Saturday, June 26, 2010

I will now mention some cases from the Appeals Board website on the issue of a Claimant's Request For Hearing. Note also, that the following is mentioned in all caps:

"NOTE: REGARDLESS OF THE PRINCIPLES DISCUSSED IN THIS SECTION, LOCAL OFFICES ARE REQUIRED TO PROCESS ANY AND ALL HEARING REQUESTS. THE ADMINISTRATIVE LAW JUDGE WILL DECIDE WHETHER CLAIMANT IS ENTITLED TO A HEARING.

Timeliness

Where the statutory appeal period ends on a Saturday, Sunday or holiday, such period is extended until the next business day. (A.B. 169,597A; See General Construction Law Sub. Sec. 25-a)

A claimant who did not request a hearing from a written determination of unavailability within the statutory appeal period but continued to certify to unemployment thereafter, may be heard on the question of availability for the period 30 days prior to the date on which request for a hearing is filed. (A.B. 21,562-49; A-750-938)

A timely protest of a determination revising or correcting an initial determination gives the referee jurisdiction on the merits, even though the protest is untimely with respect to the original determination, and even though the recipient is not newly aggrieved by the revised or corrected determination. (A.B. 24l,070F; A-750-1836)

A timely hearing request from a notice of an overpayment does not permit a referee to take jurisdiction over the merits of the initial determination causing the overpayment, when the request is untimely with respect to the original determination. (A.B. 54,699-56; A-750-1420)

The 30 day statute of limitation. on hearing requests does not apply when a determination was mailed to the last known address of a person who was not then a claimant, but he did not receive it because he had moved. (A.B. 202,436; A-750-1850)

An objection made prior to the issuance of an initial determination is not a timely request for a hearing and does not give an administrative law judge jurisdiction to decide a case on its merits. (A.B. 273,205; A-750-1865)

A determination under Section 590.10 or 590.11 is not an ongoing one. Thus, a hearing request made more than 30 days after issuance of such determination does not give an administrative law Judge jurisdiction to decide the case on its merits. (A.B. 281,098; A-750-1881)

Claimant's attempt to request a hearing by telephone within thirty days of the mailing of the initial determination does not constitute a timely hearing request if the claimant is advised of the necessity to make such request in person or by mail and claimant has sufficient time to comply, but does not act promptly to make such request within the statutory period. (A.B. 409,1851; A-750-2050)

When claimant's need for Spanish language material is clearly evident, a notice of determination sent without it is defective and cannot be the basis for holding a hearing request untimely. (A.B. 429,1731; A-750-2067)

Claimant's failure to request a hearing within 30 days of the initial determination is not excused by claimant's incarceration, since claimant was not prevented by physical condition or mental incapacity from filing a hearing request. (A.B. 455,1691; A-750-2080)

In the absence of proof to the contrary, a determination is deemed mailed on the date recited on the initial determination and deemed received by the party to whom it is addressed within five business days. A hearing request is timely if such request is postmarked within 30 days of the appealing party’s receipt of the determination, or if there is other proof of filing of same with the commissioner within thirty days of receipt.(A.B. 545591; A-750-2130)"

Friday, June 25, 2010

"(a) A claimant who is dissatisfied with an initial determination, or any other party affected by such determination, may request a hearing before an administrative law judge, pursuant to subdivision 1 of section 620 of the law, within 30 days after the mailing or personal delivery of such initial determination. A request for a hearing shall be deemed to be timely filed if such request is postmarked within 30 days of the appealing party's receipt of such determination, or if there is other proof of filing of same with the commissioner, such as a fax acknowledgment, a certificate of mailing, a stamped receipt by an agent of the commissioner, or an affidavit of personal service on the commissioner or her agent by a disinterested party. Absent proof to the contrary, an initial determination of the commissioner shall be deemed to have been mailed on the date recited on the initial determination and received by a party to whom it is addressed no later than five business days after the date on which it is mailed. The request for such hearing shall be filed at the local office. The request should be in writing stating the reasons therefor."

Thursday, June 24, 2010

Sec. 620. Referees` hearings. 1. Disputed claims for benefits. (a) A claimant who is dissatisfied with an initial determination of his claim for benefits or any other party, including any employer whose employer account percentage might be affected by such determination, may, within thirty days after the mailing or personal delivery of notice of such determination, request a hearing. The referee may extend the time fixed for requesting a hearing, upon evidence that the physical condition or mental incapacity of the claimant prevented the claimant from filing an appeal within thirty days of the initial determination. Any employer whose employer account percentage might be affected by such determination, irresepctive of whether or not such employer was a party to a hearing brought hereunder, shall have free access to all records of any hearing brought hereunder by any party relating to such determination.

Wednesday, June 23, 2010

Let us now the discuss the issue of the Claimant's timeliness to request a hearing. Of course, the first place to start this discussion is from the FAQ from the Appeals Board website:

"How do I ask for a hearing if I disagree with a NOTICE OF DETERMINATION on unemployment benefits?

The NOTICE OF DETERMINATION tells you how to ask for a hearing. Fax or mail a request for a hearing to the address indicated on the NOTICE OF DETERMINATION. Your request must be postmarked or faxed within 30 days after the determination is mailed to you. A hearing will not automatically be set up if you don’t ask for one.

Who can ask for a hearing?

A claimant or employer who is affected by the determination can ask for a hearing. Under the law, charges for benefits are shared by all employers of the claimant in the base period. That is why employers who are not the last employer may also ask for a hearing. If a claimant receives a Notice of Hearing, he or she should attend to preserve any rights to benefits.

What does the hearing mean to me?

The hearing is an informal trial. The judge decides after the hearing to grant or deny unemployment benefits to a claimant. If the judge decides in the claimant’s favor, any benefits due will be paid. If an employer asked for the hearing and the decision goes against the claimant, the claimant’s benefits will be stopped and it is possible any benefits the claimant has already received may have to be repaid.

Can I ask for the hearing to be on a certain day or time?

When you ask for the hearing, explain if you cannot attend during certain hours or on certain days and the reason for that. We will try to satisfy your request.

Who is the judge?

The judge is employed by the Unemployment Insurance Appeal Board to decide if the determination made by the Department of Labor is correct or not. The judge is not connected to any side in the case. The judge is not connected to the Telephone Claim Center (TCC). The judge’s job is to make sure that everyone gets a fair chance to be heard. The judge knows the unemployment insurance law, evidence and procedure. The judge will review the evidence introduced at the hearing and will send you a written decision after the hearing.

Who can attend the hearing?

You and someone who can help you present your case can attend the hearing. This person can be a lawyer, an authorized agent, union representative, or a friend. Your former employer or their representative(s), (who may be a lawyer) may attend. You and your former employer both have a right to bring witnesses. The DOL may send a representative to defend its decision."

Tuesday, June 22, 2010

Unfortunately, at the hearing yesterday, the Administrative Law Judge reserved decision on the issue of timeliness of the Employer's Request For Hearing so now we are on for hearing number 3 on the issue of misconduct. This is unfortunate because now the Claimant has further hearings, the attorney fee will be greater, more delays, etc. But the law is clear on what is a timely request for a hearing notwithstanding the language in the Appeal Board rules and the case law should govern. Here are two more cases:

IN RE LURIE, 49 A.D.3d 932, 853 N.Y.S.2d 390 [3d Dept 2008]

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed July 31, 2006, which, upon reconsideration, adhered to its prior decisions ruling, among other things, that the employer's request for a hearing was untimely.

Andrew M. Cuomo, Attorney General, New York City (Dawn A. Foshee of counsel), for Commissioner of Labor, respondent.

Before: Cardona, P.J., Peters, Spain, Rose and Lahtinen, JJ.

On November 23, 2004, the Department of Labor issued an initial determination holding claimant eligible to receive unemployment insurance benefits and the employer liable for contributions based on remuneration paid to claimant and others similarly situated. However, the employer did not request a hearing challenging the determination until March 3, 2005. Following a hearing on the issue, in two separate decisions, an Administrative Law Judge found that the hearing request was untimely as to the issue of claimant's eligibility and as to the issue of the employer's liability for contributions. These decisions were subsequently affirmed by the Unemployment Insurance Appeal Board. The employer successfully moved to reopen and, upon reconsideration, the Board adhered to its prior decisions, prompting these appeals.

Pursuant to Labor Law § 620 (2), an employer has 30 days from the mailing or personal delivery of a contested determination to request a hearing. Although the employer offered an excuse for its failure to request a hearing within the 30-day period following the November 23, 2004 determination, "the statutory time period in which to request a hearing is to be strictly construed, and the statute contains no provision permitting an extension of time in which an employer can request a hearing" (Matter of Rago [Resource One, Inc. — Commissioner of Labor], 22 AD3d 1002, 1002 [2005]; see Matter of Schwartz [Durhon Oldham Natl. Income Life — Commissioner of Labor], 17 AD3d 903, 903-904 [2005]). Accordingly, we will not disturb the Board's decisions with respect to timeliness. In view of our disposition, we need not address the employer's remaining claims.

Ordered that the decisions are affirmed, without costs.________________________________________

IN RE HARROUN, 44 A.D.3d 1220, 843 N.Y.S.2d 526 [3d Dept 2007]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 27, 2006, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Law Offices of David J. Sutton, P.C., Garden City (Brian C. Pascale of counsel), for appellant.

Before Mercure, J.P., Spain, Rose, Lahtinen and Kane, JJ., concur.

An initial determination by the Commissioner of Labor finding claimant eligible to receive unemployment insurance benefits was mailed to the parties on August 23, 2005. Thereafter, by correspondence dated September 21, 2005 and filed with the local unemployment office on September 26, 2005, the employer requested a hearing to protest the determination. Following the hearing, the Administrative Law Judge overruled an objection by the Commissioner of Labor that the employer's hearing request was untimely, and upheld the initial determination of eligibility for benefits. The Unemployment Insurance Appeal Board reversed the Administrative Law Judge's decision, finding that claimant was disqualified from receiving benefits on the ground that she had been discharged from her employment for misconduct. Claimant now appeals.

We reverse. The 30-day period in which the employer had to request a hearing to contest the Commissioner of Labor's initial determination expired on September 22, 2005 (see Labor Law § 620 [2]). Although the employer's hearing request was dated and apparently mailed on September 21, 2005, it was not filed until September 26, 2005. The timeliness of such a request is measured by the date on which it was filed, and not on the date on which it was mailed (see Matter of Levine Commissioner of Labor], 253 AD2d 954, 955 [1998]). As such, the employer's request for a hearing, filed four days after the controlling 30-day limitations period elapsed, was time-barred (see id.).

Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision.

Monday, June 21, 2010

Today I will deal with a conflict as to what is the proper time for an employer to file a request for a hearing after it has been determined that the Claimant is entitled to benefits.

The statute involved is:

LABOR LAW SECTION 621 (2):

"2. Contested determinations, rules, or orders. Within twenty days after the mailing or personal delivery of notice of the decision after a hearing on contested determinations, rules or orders by the commissioner, the employer may take an appeal to the appeal board, provided he appeared at the hearing, by filing a notice of appeal with the commissioner, and the commissioner may likewise within such period take an appeal to the board by giving written notice thereof to the employer, regardless of whether or not the commissioner appeared or was represented at the hearing before the referee."

Any employer who claims to be aggrieved by any determination, rule or order of the commissioner under any provision of the law, may apply to the commissioner for a hearing before an administrative law judge, pursuant to subdivision 2 of section 620 of the law, within 30 days after the mailing or personal delivery of notice of such determination, rule or order. A request for a hearing shall be deemed to be timely filed if such request is postmarked within 30 days of the appealing party's receipt of such determination, or if there is other proof of filing of same with the commissioner, such as a fax acknowledgment, a certificate of mailing, a stamped receipt by an agent of the commissioner, or an affidavit of personal service on the commissioner or her agent by a disinterested party. Absent proof to the contrary, an initial determination of the commissioner shall be deemed to have been mailed on the date recited on the initial determination and received by a party to whom it is addressed no later than five business days after the date on which it is mailed. The application for such hearing should be in writing stating the reasons therefor.

Now note the italic section of the regulation and how it conflicts with the following 3rd Department case:

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 5, 2007, which, upon reconsideration, adhered to its prior decision ruling, among other things, that claimant was disqualified from receiving unemployment insurancebenefits because his employment was terminated due to misconduct.

Martin T. Surdam, Tonawanda, appellant pro se.

Before: Mercure, J.P., Spain, Rose, Kane and Kavanagh, JJ.

An initial determination finding claimant eligible to receive unemployment insurance benefits was mailed to the parties on April 19, 2006. Although the employer thereafter requested a hearing to challenge that determination, an Administrative Law Judge sustained the initial determination upon the employer's failure to appear. The employer successfully applied to reopen the case and, following a hearing, an Administrative Law Judge overruled an objection by the Commissioner of Labor to the timeliness of the employer's hearing request and determined that claimant was disqualified from receiving benefits because he lost his employment as a result of misconduct. The Unemployment Insurance Appeal Board affirmed that decision and, following claimant's successful application for reopening and reconsideration, adhered to its decision. Claimant now appeals.

Although the employer's hearing request was dated within the statutory 30-day period (see Labor Law § 620 [2]), it was not filed with the Department of Labor until that time period had expired. As such, it was not a timely request (see Matter of Harroun [Commissioner of Labor], 44 AD3d 1220, 1221 [2007]; Matter of Levine [Commissioner of Labor], 253 AD2d 954, 955 [1998]) and the Board's decision must be reversed.

Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision.

Sunday, June 20, 2010

The following case involved one isolated incident of company policy which the Claimants immediately corrected, yet misconduct was found:

IN RE CEDRONE, 69 A.D.3d 1251 [3d Dept 2010]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 22, 2008, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant worked as the lead teacher in charge of the infant room of a day-care facility. As part of her duties, claimant was responsible for ensuring that, in the event of an emergency, all children in the classroom were evacuated to the gymnasium. On February 7, 2008, the facility fire alarm went off due to a fire in the building's kitchen. It is undisputed that, in the course of evacuating her classroom during the fire alarm, claimant left a child behind in violation of the facility's safety policy. Claimant soon realized her mistake and retrieved the child unharmed. Her employment was immediately terminated. As a result of the incident, the matter was investigated by the Office of Children and Family Services. The facility was ultimately fined $500 and a negative mark was placed on its day-care license. Claimant subsequently applied for unemployment insurance benefits and the Unemployment Insurance Appeal Board ruled that she was disqualified from receiving benefits on the ground that she was terminated for misconduct. The Board adhered to its decision upon reconsideration, prompting this appeal.

Claimant contends that, since this was an isolated incident, the Board erred in concluding that the actions that led to her termination rose to the level of misconduct supporting her disqualification from receiving unemployment benefits. We disagree. In order to constitute disqualifying misconduct, claimant's conduct "must either be detrimental to the employer's interest or a violation of a reasonable work condition" (Matter of Marten [Eden Park Nursing Home — Commissioner of Labor], 255 AD2d 638, 638 [1998]; see Matter of Martin [Commissioner of Labor], 299 AD2d 624 [2002], lv denied 99 NY2d 507 [2003]). While it is true that "[m]ere negligence or carelessness, although sufficient for termination, is not enough to disqualify a person from receiving unemployment insurance benefits" (Matter of Marten [Eden Park Nursing Home — Commissioner of Labor], 255 AD2d at 638), here, substantial evidence supports the Board's conclusion that claimant's conduct was not simply negligent, but also a violation of an important safety policy and was clearly adverse to the facility's interest. Under these circumstances, we find no basis to disturb the Board's decision (see Matter of Bohmann [Commissioner of Labor], 29 AD3d 1250, 1251 [2006]; Matter of Bastian [Commissioner of Labor], 19 AD3d 915, 916 [2005]; Matter of Johnson [Wayandanch Day Care Ctr. — Commissioner of Labor], 257 AD2d 823,823 [1999]).

Saturday, June 19, 2010

The next case illustrates the problem when a Claimant has had a union hearing on the issue of misconduct and set forth the standard of proof - substantial evidence establishing the following two issues:

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 10, 2009, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment wasterminated due to misconduct.

Andrew M. Cuomo, Attorney General, New York City (Gary Leibowitz of counsel), for Commissioner of Labor, respondent.

Before: Cardona, P.J., Spain, Lahtinen, Kavanagh and McCarthy, JJ.

MEMORANDUM AND ORDER

Claimant worked as a special education teacher for a school district for over 20 years. In May 2006, the district brought disciplinary charges against him pursuant to Education Law § 3020-a and sought his termination. Thereafter, a hearing wasconducted before a Hearing Officer who sustained a number of the charges, including that claimant inappropriately shouted at the school principal in the presence of students and staff, left students in his classroom unsupervised and engaged in sexualharassment. The Hearing Officer concluded, based upon the evidence presented, that claimant's termination was warranted. Claimant was discharged as a result. The Unemployment Insurance Appeal Board subsequently ruled that he was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. Claimant now appeals.

We affirm. Initially, we note that the factual findings of the Hearing Officer are entitled to collateral estoppel effect inasmuch as claimant was present at the Education Law § 3020-a hearing and had a full and fair opportunity to be heard with respect to the charges of misconduct forming the basis for his dismissal (see Matter of Davis [Commissioner of Labor], 64 AD3d 1057, 1057-1058 [2009], lv denied ___ NY3d ___ [Feb. 18, 2010]; Matter of Goulbourne [Commissioner of Labor], 18 AD3d 1087, 1087 [2005]). Accepting those findings, "an employee's actions that are contrary to established policies and have a detrimental effect upon an employer's interests have been found to constitute disqualifying misconduct" (Matter of Cody [New York City Dept. of Educ. — Commissioner of Labor], 37 AD3d 920, 920 [2007]; see Matter of Bohmann [Commissioner of Labor], 29 AD3d 1250, 1251 [2006]). Substantial evidence supports the Board's decision here given that the conduct providing the basis forclaimant's termination violated the employer's policies and was clearly detrimental to its interests. Therefore, we find no reason to disturb the Board's decision.

Friday, June 18, 2010

I think this is is a key case from the Appellate Division which has had an impact on Claimants:

IN RE DUNHAM, 68 A.D.3d 1328, 890 N.Y.S.2d 207 [3d Dept 2009]

McCarthy, J. Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 5, 2009, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due tomisconduct.

Francis A. Discenza, Rome, for appellant.

Andrew M. Cuomo, Attorney General, New York City (Dawn A. Foshee of counsel), for respondent.

Before: Cardona, P.J., Peters, Rose and Kane, JJ., concur.

Claimant was a full-time agent for the employer, Regional Off-Track Betting Corporation, for approximately 372 years (sic) before her termination in August 2008. During a routine audit,it was discovered that claimant's drawer was $20 short. She realized that she had sold $20 worth of lottery tickets to the manager of the adjacent bar that morning upon his promise that he would return promptly with payment, however, he had not yet done so. Claimant immediately retrieved the money from the bar manager and gave it to the auditor. Shortly thereafter, having determined that the transaction constituted "credit wagering," the employer terminated claimant and disputed her application for unemployment benefits. A hearing followed, after which an Administrative Law Judge ruled that claimant did not engage in misconduct and, therefore, was not disqualified from receiving benefits. However, the Unemployment Insurance Appeal Board reversed that decision and denied claimant benefits. Claimant appeals, and we reverse.

Undoubtedly, conduct that is detrimental to an employer's interest constitutes misconduct and will disqualify an employee from eligibility for unemployment insurance benefits (see Matter of Clum [All-Lifts, Inc. — Commissioner of Labor], 51 AD3d 1171, 1172 [2008]; Matter of McKoy [LB & B Assoc., Inc. — Commissioner of Labor], 27 AD3d 922, 923 [2006]). However, while an employee may have been fired for valid reasons, his or her behavior may fall short of misconduct and, therefore, he or she may still be entitled to receive benefits (see Matter of Clum [All-Lifts, Inc. — Commissioner of Labor], 51 AD3d at 1172-1173; Matter of Pfohl [Hunter's Hope Found., Inc. — Commissioner of Labor], 9 AD3d 729, 730 [2004]).[fn*] Here, claimant admitted that she gave the lottery tickets to the bar manager without immediately receiving payment in return, and denied that doing so violated the employer's policy against credit wagering. Her undisputed testimony established that this customary practice with the bar manager had occurred several times per week for years, and was engaged in by the employer's other agents as well as claimant with the full knowledge of both the manager and assistant manager, neither of whom ever indicated that it was against company policy. Significantly, no evidence was submitted that this custom was detrimental to her employer's interests. Under these circumstances, we cannot agree that there is substantial evidence to support the determination that claimant's behavior constituted misconduct warranting denial of benefits and, therefore, we reverse (see Matter of Clum [All-Lifts, Inc. — Commissioner of Labor],51 AD3d at 1173; Matter of Wlos [Commissioner of Labor],42 AD3d 719, 720-721 [2007]).

Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision.

[fn*] We acknowledge that, contrary to some of this Court's prior decisions, an employee's conduct need not be willful and wanton to rise to the level of disqualifying misconduct (see Matter of Clum [All-Lifts, Inc. — Commissionerof Labor], 51 AD3d at 1172 n).

Thursday, June 17, 2010

Today, I offer pro bono representation of homeowners on behalf of the Nassau County Bar Association (NCBA)for the 11:00am mandatory conference session in mortgage foreclosure actions. Again: there are two sessions Monday through Thursday: 11am (but not on Tuesday) and 2pm and one 9:30 session on Friday but only one calendar posted outside the courtroom so when you read the calendar posting, you will see both sessions listed. So number 1 on the calendar may be for the 11am session and number 3 for the 2pm session and number 8 for the 11am session, etc. Also, as a note to all volunteer attorneys, from the NCBA:

"Please remember to sign the Nassau County Bar Association Pro Bono Representation Conference form with the names of the clients you spoke with at your session. (The clerk of the court should have the forms) This enables us to have the appropriate malpractice coverage in place for you during this session. However, you must be a member of the Nassau County Bar Association. I have attached a checklist which may help you during the conferences. Additionally, from time to time, you may have observers who wish to volunteer in the future. If so, please let me know who observed.

We now have a Nassau Bar Tablecloth and pamphlets with the list of housing agencies and regarding lawyer referral. They are kept in a box behind the gate. When you arrive, ask the clerk for the box, and when you leave at the end of the day and file your certificate, give it back for safe keeping overnight. If you need additional documents please let me know.

Wednesday, June 16, 2010

"Unemployed/Underemployed Lawyers Group "Strategic Support and Solutions"

• June 16 12:30 p.m. You Are Not Alone! If you are currently unemployed or underemployed, you are in very good company. Join others confronting employment challenges at this group, a new effort sponsored by the Lawyer Assistance Program Committee. There is no fee to participate, and an optional buffet lunch is available at a modest cost."

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed December 5, 2008, which, upon reconsideration, adhered to its prior decisions ruling, among other things, that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Andrew M. Cuomo, Attorney General, New York City (Dawn A. Foshee of counsel), for Commissioner of Labor, respondent.

Before: Spain, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ.

MEMORANDUM AND ORDER

Claimant worked as a telephone adjuster for the employer. Claimant's employment was terminated after it was discovered that the ringer of her telephone had been turned off in violation of the employer's written standards of conduct. In herapplication for unemployment insurance benefits, claimant denied violating company policy and was initially awarded benefits. The Unemployment Insurance Appeal Board ultimately ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct. The Boardalso charged her with a recoverable overpayment of benefits and imposed a forfeiture penalty upon finding that she made a willful misrepresentation to obtain benefits. The Board adhered to its decisions upon reconsideration and claimant now appeals.

Substantial evidence supports the Board's decision finding that claimant's employment was terminated due to disqualifying misconduct. "It is well settled that failure to abide by a known policy of the employer can constitute disqualifying misconduct" (Matter of Wise [Commissioner of Labor], 19 AD3d 795, 795 [2005] [citations omitted]; see Matter of Cruz [Commissioner of Labor], 54 AD3d 1082, 1083 [2008]). The record establishes that claimant was aware that the employer considered manipulating the telephone to avoid customer contact to be grounds for termination. Further, claimant's supervisor testified that he was monitoring claimant's phone activity the day of the termination and, after noting an unusual absence of incoming calls into her extension, he discovered that the telephone's ringer had been turned off. Although claimant admitted that she had turned the telephone's ringer off on oneoccasion in the past, she testified that she did not turn it off on the day in question. This created a credibility determination for the Board to resolve (see Matter of McFarlane [Commissioner of Labor], 51 AD3d 1317, 1318 [2008], lv denied11 NY3d 710 [2008]). Moreover, substantial evidence supports the Board's determination that, by stating that she had not violated a company rule or policy in her application for benefits, claimant made a willful misrepresentation to obtain benefits (see Matter of Barbera [Commissioner of Labor], 28 AD3d 973, 975 [2006]).

Monday, June 14, 2010

What evidence is required for a finding of misconduct? According to the Appeal Board website:

1. For the sustainment of a charge of misconduct there must be clear proof that an act detrimental to employer's interests was indisputably committed by claimant. (A.B. 1008-39)

2. Misconduct under the Law was established even though acts did not result in criminal conviction. (Ref. Dec. 532-78-39R. Principle confirmed by Matter of Colello, No.76-443 App. Div., 3rd Dept., Dec. 2, 1976, unreported)

5. The policy violated was not clearly detrimental to the Employer's interests.

Most Employers objecting to benefits are going to claim that all of the above constituted misconduct under the theory that any violation of company policy is detrimental to the Employer's interests and thus constitutes misconduct.

Saturday, June 12, 2010

Is every act of an employee in violation of company policy an act of misconduct, thus disqualifying Claimant from Unemployment Insurance? That is the position of many Employers and is an issue that I am facing in an appeal and several upcoming hearings. I will discuss my research in this blog. Let's begin with the general introduction of the rules from the Appeals Board website:

"Under Section 593.3, if a claimant lost employment prior to the filing of his claim through misconduct in connection with his employment, he is disqualified from benefits beginning with such loss of employment and ending when he has worked in subsequent employment and earned remuneration at least equal to five times his weekly benefit rate. In addition, any wages earned in employment which ended due to misconduct in connection with that employment cannot be used to establish a valid original claim for benefits. (See Field Memo 2-99 for further detail)

The term "misconduct" is not defined in the statute. However, the Court of Appeals in Matter of James(34 NY 2d 491; A-750-1775) has indicated that "misconduct" is any volitional act or omission which is detrimental to an employer's interests. Subsequent Appeal Board decisions have indicated that "misconduct" may include acts or omissions off the job as well as on the job, if adverse effect on the employer is demonstrated.

Notwithstanding the broad concept of misconduct now applied, there remain circumstances which would not justify the imposition of a disqualification for misconduct, including:

Mere inefficiency,

Inadequate performance as the result of inability or incapacity,

Inadvertence or ordinary negligence in isolated instances,

Good faith errors in judgement or discretion.

On the other hand, even inadequate performance may be misconduct if it can be shown that it resulted from gross negligence, indifference, or recurrent carelessness."

Friday, June 11, 2010

Yesterday, I volunteered to offer pro bono representation of homeowners on behalf of the Nassau County Bar Association for the 11:00am mandatory conference session. I will again volunteer on June 17. But yesterday, there were several homeowners who attended without representation and only one spoke to me. The help is there but it appears fewer are willing to use it. What seems to be happening is that many homeowners are just discussing their cases with the bank's attorney and not seeking advice from their own. But with the one party that I spoke to, a pro se answer was filed by the party and this will delay the foreclosure process for the homeowner while the homeowner seeks to sell, modify, etc.

One other word of note: there are two sessions Monday through Thursday: 11am and 2pm but only one calendar posted outside the courtroom so when you read the calendar posting, you will see both sessions listed. So number 1 on the calendar may be for the 11am session and number 3 for the 2pm session and number 8 for the 11am session, etc.

Thursday, June 10, 2010

"Last year, the Legislature and I responded to the tragic death of 11-year-old Leandra Rosado, who was killed while riding in a vehicle driven by an allegedly intoxicated driver, by enacting what we believe are the toughest anti drunk driving laws in the nation. The first part of “Leandra’s Law,” which makes it a felony to drive drunk with a child in the car, took effect last fall. The second phase – the so-called “interlock provision” – takes effect August 15.

Under this provision, when anyone is convicted of a felony or misdemeanor drunk driving offense the court will be required to impose – in addition to any fine or jail sentence – a term of probation or conditional discharge of at least six months. During this time, the offender will be required to install and maintain an ignition interlock device in any motor vehicle they own or operate. Before a vehicle’s motor can be started, the driver will have to exhale into the device and if their breath alcohol concentration is higher than a certain level, the engine will not start which will make the roads safer for all New Yorkers.

It is our goal to dramatically decrease the incidence of drunken driving, not merely catch and prosecute those who violate the law and I believe the inconvenience, expense and humiliation of having to blow into a mechanical device before starting a vehicle will have a powerful deterrent effect – when people are aware of that consequence of drunken driving.

Wednesday, June 9, 2010

I have been noting, perhaps as a result of the economy, a greater number of Claimants who have been denied benefits and, to add to their disappointment, the difficulty in overturning the adverse determination by the Department of Labor. Recently, I was consulted by someone who wanted to know if the Employee could voluntary separate due to mental health issues. Of course, the general rule with voluntary separation is that one must have a compelling good cause and have taken reasonable steps to protect the employment. Mental health issues was recently discussed by the Appellate Division, 3rd Department in a misconduct case:

IN RE ANUMAH, 60 A.D.3d 1216, 876 N.Y.S.2d 172 [3d Dept 2009]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 13, 2008, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant was a senior medical clerk for the employer. She received progressive discipline related to her excessive tardiness and absenteeism, including verbal warnings, written warnings and, finally, a two-day suspension in December 2005. After that suspension, she was tardy or absent an additional 38 times before her absence on April 17, 2006. The employer then terminated her employment due to her continued attendance problems. At a hearing following the denial of claimant's application for unemployment insurance benefits, she testified and supplied medical evidence that she was diagnosed with major depressive disorder that caused her tardiness and absenteeism. The Administrative Law Judge found that claimant should have informed the employer that her diagnosed disorder caused her attendance problems, and her failure to do so constituted misconduct. The Unemployment Insurance Appeal Board affirmed, both initially and upon reconsideration. This appeal by claimant ensued.

Claimant acknowledges that her poor attendance furnished the employer with sufficient reason to terminate her employment. The issue on this appeal is whether her absenteeism constituted misconduct that disqualifies her from receiving unemployment insurance benefits, or whether her diagnosis excuses her attendance problems for unemployment insurance purposes (see Matter of Clum [All-Lifts, Inc. -Commissioner of Labor], 51 AD3d 1171, 1172-1173 [2008]). Excessive absences and tardiness following prior warnings have been found to constitute disqualifying misconduct (see Matter of Kazaka [Commissioner of Labor], 46 AD3d 1071, 1071 [2007]; Matter of Valenta [Commissioner of Labor], 38 AD3d 1070, 1070 [2007]; Matter of Cuillo [Commissioner of Labor], 37 AD3d 896, 897 [2007]; Matter of Iglesias [Commissioner of Labor], 297 AD2d 849, 849-850 [2002]). On the other hand, loss of employment attributable to symptoms of a recognized illness will not constitute disqualifying misconduct (see Matter of Finn [Commissioner of Labor], 307 AD2d 509, 510 [2003]; Matter of Pluckhan [Sweeney], 245 AD2d 997, 998 [1997]). Whether absences are justified so as to remove them from disqualifying misconduct is a factual issue for the Board to resolve, and its determination will be upheld if supported by substantial evidence (see Matter of Sunderland [Nassau County Med. Ctr. — Roberts], 121 AD2d 779, 780 [1986]).

Here, the Board determined that claimant did not take reasonable steps to protect her employment (see Matter of Hernandez [Commissioner of Labor], 299 AD2d 794, 794[2002]). Claimant was aware, through the employer's progressive discipline spanning more than a year, that her job was in jeopardy. She contends that she took reasonable steps to protect her position by attending weekly therapy sessions and seeing a psychiatrist to adjust her medication. Yet these actions, about which her employer was unaware, did not resolve the problem. Each time the employer counseled and warned claimant about her attendance, the employer inquired if it could do anything to help; claimant did not respond or offer any explanation for her absences. The employer's witness testified that had claimant mentioned the reason for her absences, it would have referred her to a company nurse — who would keep specific medical information confidential — or the human resources department to consider accommodations such as different hours or leave under the Family and Medical Leave Act of 1993 (29 USC § 2612 [a] [1] [D]). Substantial evidence supports the Board's determination that by failing to mention the legitimate medical reason for her absences, claimant failed to take a reasonable step to protect her position (see Matter of Peterson [Commissioner of Labor], 32 AD3d 610, 610-611 [2006]; Matter of Hernandez [Commissioner of Labor], 299 AD2d at 794; see also Matter of Miner [Commissioner of Labor], 49 AD3d 1128, 1129 [2008]; Matter of Cooper [Commissioner of Labor], 305 AD2d 894, 895 [2003]). Thus, she was not entitled to unemployment insurance benefits.

The employer did not violate the Americans with Disabilities Act of 1990(hereinafter ADA) (see 42 USC § 12101 et seq.). The employer did not require claimant to explain her absences and, even when warnings were given, only a general inquiry was made to see if the employer could do anything to assist claimant in remedying her attendance problems. Nevertheless, the ADA permits inquiries related to business necessity (see 42 USC § 12112 [d] [4] [A]), and regular attendance usually is, although it is not always, an essential function of a position (see Brenneman v MedCentral Health Sys., 366 F3d 412, 418-420 [6th Cir 2004]; Ramirez v New York City Bd. of Educ., 481 F Supp 2d 209, 221-222 [ED NY 2007] [stating that attendance is an essential function of employment]; Miller v Verizon Communications, Inc., 474 F Supp 2d 187, 198 [D Mass 2007]; see also Conroy v New York State Dept. of Correctional Servs., 333 F3d 88, 97-98 [2d Cir 2003] [explaining the business necessity standard]). Thus, requiring claimant to take reasonable steps to protect her employment, by providing a reason for her absences and lateness, does not violate the ADA.

Tuesday, June 8, 2010

Tomorrow I will be a volunteer lawyer for the day at Landlord/Tenant court in Hempstead. Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project (VLP). The Nassau County Bar Association partners with the Nassau/Suffolk Law Services Committee to support VLP, which helps maximize the quantity and quality of pro bono assistance provided for the county's low-income community. Volunteer attorneys handle a wide array of cases including matrimonial matters, individual bankruptcy, personal injury and negligence defense, estate matters, release of accounts blocked by judgment creditors, and various other civil matters. I will be with The Landlord/Tenant Project's Attorney of the Day Program, which assists thousands of men, women and children in court to prevent homelessness.

Monday, June 7, 2010

On the other hand, researching the recent decisions of the Appellate Division, 3rd Department (which is where all appeals from the Appeals Board goes to), it appears that the Court is quite strict with the issue of repeated lateness - here's a sample case and note that it was decided almost a year and a half after the Appeals Board denied the claim:

IN THE MATTER OF THE CLAIM OF DIANE ARMELLINO, Appellant v.

COMMISSIONER OF LABOR, Respondent.

507342.

Appellate Division of the Supreme Court of New York, Third Department.

Calendar Date: November 4, 2009.

Decided and Entered: January 14, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 21, 2008, which ruled that claimant was disqualified from receiving unemployment insurance benefits because heremployment was terminated due to misconduct.

Diane Armellino, New York City, for appellant.

Andrew M. Cuomo, Attorney General, New York City (Linda D. Joseph of counsel), for respondent.

Before: Mercure, J.P., Spain, Lahtinen, Malone Jr. and Garry, JJ.

MEMORANDUM AND ORDER

Claimant was employed as an administrative assistant at a fence and ironworks installation company starting in July 2006. On July 25, 2007, despite prior warnings concerning her tardiness and absenteeism, claimant failed to report to work. As a result,claimant's employment was terminated. The Unemployment Insurance Appeal Board ultimately disqualified her from receiving unemployment insurance benefits on the ground that her continued absences constituted misconduct. Claimant now appeals.

Substantial evidence supports the Board's decision finding that claimant was discharged from her employment due to disqualifying misconduct. "It is well settled that continued absenteeism and tardiness despite previous warnings can constitutedisqualifying misconduct" (Matter of Schnabel [Commissioner of Labor], 307 AD2d 572, 572 [2003] [citations omitted]). Here, the employer's representatives testified that claimant had been warned several times prior to July 25, 2007 about her poor attendance and punctuality. Claimant, while not contesting that she had been absentfrom work numerous times, gave conflicting testimony that she had never been warned of the consequences of her continued absences,which created a credibility issue for the Board to resolve (see Matter of Alexander [City Univ. of N.Y. — Commissioner ofLabor], 7 AD3d 860, 861 [2004]).

Sunday, June 6, 2010

Repeated lateness - usually disqualifying conduct. But I have a hearing coming up tomorrow where the following case may be of help:

"NEW YORK STATE DEPARTMENT OF LABORUNEMPLOYMENT INSURANCE DIVISIONADJUDICATION SERVICES OFFICE

March 24, 1989

Tardiness caused by a transportation delay on claimant’s last day of work is not misconduct when claimant had followed the employer’s prior advice to leave home at an earlier hour to overcome these delays, but was nevertheless unavoidably late.

A.B. 390,570

FINDINGS OF FACT: The claimant was employed as a trimmer in a handbag factory for approximately two and a half years until April 18, 1988. She was scheduled to start work at 8:00 A.M. During the last months of her employment, claimant was warned about her tardiness. All of the latenesses were due to transit delays. After being advised by her employer to leave earlier in the morning in order to arrive on time, the claimant did so. She allowed an hour and a half to one and ¾ hours for travel time. On her last day of work, the claimant came in approximately nine minutes late. This was caused (by) a fifteen-minute verified delay of the train claimant took to work. The train also skipped the station at which claimant needed to alight in order to go to her job site. If there were not a transit delay, she would have arrived at her place of employment at the time scheduled for her to start work. Her employer discharged the claimant because of her pattern of lateness.

OPINION: The credible evidence now before the Board establishes that the claimant was approximately nine minutes late to work on April 18, 1988, because of a subway delay. After being warned by her employer about her tardiness and after receiving the employer’s advice to leave home at an earlier hour in order to overcome transit delays, claimant allowed more time for travel. Claimant’s lateness on her last day of work because of a transit delay, together with the train skipping her station, in spite of her efforts to get to work on time, was beyond her control, nor foreseeable by her. The fact that the employer chose to discharge this employee after a certain number of latenesses, does not require the conclusion that she committed an act of misconduct in relation to her employment (A.B. 360,930; A.B. 357,414; A.B. 346,580; A.B. 331,918). Accordingly, we conclude that claimant lost her employment under non-disqualifying conditions.

DECISION: The initial determination of the local office is sustained. The employer’s objection is overruled. The decision of the administrative law judge is reversed."

Saturday, June 5, 2010

Recently, in a LinkedIn discussion group for Family Lawyers, we had a discussion about the high incidences of perjury in matrimonial actions and the devastating effects it has on family relations. I had pointed out that my experience was that perjury incidences exist in all litigations and that devastating effects on family relationships exist not just in matrimonial actions but in dispute regarding estate matters, guardianships, health proxies, burial issues, family loans, etc. Some of you may have had these experiences yourself, may have read about it in celebrity cases, etc. What to do? Advice ranges from that you should make your estate plans yearly and have a family meeting early so that all family members are aware to keeping your estate plans secret until your death. I would imagine that any method may open a "cans of worms", as I realize that poor family health is not a legal matter but many legal matters arise out of poor family mental health.

Friday, June 4, 2010

To conclude, I will refer to earlier blogs regarding the use of power of attorney, living will, health care poxy, MOLST, will, trusts etc. Finally, I point out that ethical considerations do exist for attorneys who draft these documents for a "problem adult" at the request of a family member or other person: the news have been full of stories about predatory actions taken i.e. the Brooke Astor trial of her son and there are groups who are quite opposed to the concept of guardianship, etc. One of the more prominent groups is NASGA and their website is as follows:

Thursday, June 3, 2010

Another tool one must be aware of is Kendra's Law, a New York State law concerning involuntary outpatient commitment. It grants judges the authority to issue orders that require people who meet certain criteria to take psychiatric drugs, regularly undergo psychiatric treatment, or both. Failure to comply could result in commitment for up to 72 hours. Recently, it has been the subject of debate as to whether it should continue. Here is an editorial from the New York Times:

"Make Kendra’s Law PermanentBy E. FULLER TORREY

ELEVEN years ago, when the New York Legislature passed Kendra’s Law, few could have foretold what a resounding success it would be. At the time lawmakers were searching for a useful response to the tragic death of 32-year-old Kendra Webdale, who was pushed in front of a subway train in Manhattan by a stranger who had untreated schizophrenia.

The law, initially intended for a trial period of five years, permits state judges to order closely monitored outpatient treatment for a small subset of seriously mentally ill people who have records of failing to take medication, and who have consequently been rehospitalized or jailed or have exhibited violent behavior.

In 2005, Kendra’s Law was extended for another five years. In all, more than 8,000 people have been treated under its provisions, and the results have been striking. A 2005 study of more than 2,700 people to whom the law was applied found that, after treatment, the rate of homelessness in the population fell by 74 percent, the number who needed to be rehospitalized dropped by 77 percent and the number arrested fell by 83 percent. And a study published this year found that people receiving treatment under Kendra’s Law were only one-fourth as likely to commit violent acts, had a reduced risk of suicide and were functioning better socially than members of a control group.

It’s hard to imagine a stronger argument for making the law permanent. And yet, as it comes up for renewal this month, the state Office of Mental Health is recommending only a five-year extension. Why the hesitation? Apparently, the Office of Mental Health is ambivalent about its star performer. In its latest five-year Statewide Comprehensive Plan for Mental Health Services, Kendra’s Law is not even mentioned, and the program it supports — assisted outpatient treatment — is referred to briefly only twice.

Perhaps state mental health officials are responding to critics who consider the law politically incorrect because it mandates psychiatric treatment by court order, supposedly violating the patients’ freedom to choose or forgo treatment. But these are people whose illness interferes with their ability to understand that they are sick and need medication. They do not have the choice to live freely and comfortably, but only to be homeless, in jail or in a psychiatric hospital.

The people who could be treated under Kendra’s Law account for only one in 10 seriously ill psychiatric patients. But when these people are untreated, they also make up one-third of the homeless population, and at least 16 percent of the jail and prison population. These people are ubiquitous in city parks, public libraries and train stations. And a small percentage become dangerous, even homicidal.

The law has been a model of success, not only in New York but also in 44 other states that now have similar laws (including, most recently, New Jersey and Maine). Unfortunately, these laws are too rarely used. California, for example, has passed an equivalent to Kendra’s Law known as Laura’s Law, but has not enforced it. If it had, it might have prevented 36-year-old John Patrick Bedell from wandering the country last March, taking orders from his psychotic brain, despite his family’s frantic attempts to get treatment for him. Mr. Bedell ultimately shot two security guards at the Pentagon, and was shot and killed by the officers he injured.

Kendra’s Law saves lives. By keeping patients on medication, it also saves money that might otherwise be spent on rehospitalization, prosecution and incarceration. New York should take lasting advantage of both benefits by making the law permanent.

E. Fuller Torrey, the founder of the Treatment Advocacy Center, is the author of “The Insanity Offense: How America’s Failure to Treat the Seriously Mentally Ill Endangers Its Citizens.""

Wednesday, June 2, 2010

The most critical step one can take is seek an appointment of a guardian. This has been utilized and threatened in celebrity cases (i.e. Britney Spears, Lindsay Lohan)and has been the subject of much debate, both pros and cons. For a full discussion, here is a link the Guide for Adult Guardianship prepared for The New York State Office of Children and Family Services by The Brookdale Center for Healthy Aging & Longevity of Hunter College Sadin Institute on Law, Public Policy & Aging and The New York State Law Revision Commission:

Tuesday, June 1, 2010

Now what if the "problem adult" is your child, an adult child? The first thing to be aware of is obtaining an Order of Protection. This is from the NYS Unified Court System website:

" Domestic Violence (Orders of Protection)

Q. Can I get an order of protection against a person I'm not married to in Family Court?

A. Yes. You don't need to be married to the person to get an order of protection against them in Family Court.

Q. Who can I get an order of protection against in Family Court? A. You can get an order of protection against any of the following individuals in Family Court:

A current or former spouse

Someone you have a child in common with

Another family member that you are related to by blood or marriage

Someone that you are or have been in an "intimate relationship" with. (An intimate relationship does not necessarily mean a sexual relationship, but is more than just a casual or social relationship--the court will decide whether the relationship is intimate based upon the facts about the relationship and how long it has lasted).

Q. Can I get an order of protection against a person I'm not married to in Criminal Court?A. Yes. You can get an order of protection in Criminal Court against someone you are not married to and have no relationship with at all. In Criminal Court, you could file a complaint against the person you say abused you. Typically that person would be arrested, and the District Attorney would bring a criminal case against that person. You would be the "complaining witness."

Q. Must I choose whether to ask for an order of protection in Family Court or Criminal Court?A. No. You can ask for an order of protection against your abuser in both courts at the same time.

Q. I'm being stalked. Can I get an order of protection?A. Stalking is a form of Harassment. That is one of the crimes that allows you to get an order of protection. Other crimes include Assault, Attempted Assault, Menacing, Reckless Endangerment, and Disorderly Conduct.

Q. What is a petitioner and what is a respondent?A. In Family Court, a petitioner is a person asking for an order of protection. (In Family Court, cases filed for an order of protection are called family offense cases.) A respondent is a person a petitioner wants an order of protection against. In a Criminal Court, that person is called a defendant.

Q. Can I have a lawyer?A. In a Family Court, the petitioner and the respondent each have the right to hire a lawyer. If a petitioner or a respondent can't afford to hire a lawyer, they can ask the court to appoint a lawyer free of charge. In a Criminal Court, the district attorney's office or other prosecutor represents "the people." They help the person who wants an order of protection. The defendant can hire a lawyer or have the court appoint one free of charge if he or she can't afford it.

Q. How do I start a case?A. Call the police if you feel you are in danger. You can go to your county's Family Court to file a family offense petition, go to the district attorney's office (or other local prosecutor's office), or go to the local Criminal Court. You can choose to do all of these things if you want.

Q. What is an Affidavit of Service in Family Court?A. An "Affidavit of Service" is a paper that must be filed with the court showing that the respondent has been told about the case. Court staff will help you with important instructions about this document.

Q. What is a Court Attorney in Family Court?A. A "Court Attorney" is a lawyer who works for a judge.

Q. What kinds of things can be put in my order of protection?A. Among other things, the judge can order the respondent or defendant:

• not to assault, menace, or harass you or commit crimes of reckless endangerment or disorderly conduct towards you.

• to be removed by the police from where you are living.

• to stay away from you, your residence, your job, and other places you may want.

• not to telephone or e-mail you or write you letters.

The judge can also protect your children in the order of protection. For example, you may ask that any visitation with the children be supervised. In Family Court, the judge can order the respondent to pay temporary support and to give you legal custody of any children you may have with the respondent.

Q. What happens if I miss my court date?A. If you are a petitioner in Family Court, your case will probably be thrown out and any temporary order of protection you had will be gone on that day. If you are a respondent in Family Court, the case can be done without you there (provided the petitioner gave you notice of the case) and an order of protection can be issued. As a respondent or defendant, a warrant may be issued for your arrest in either a Family Court or a Criminal Court if you don't show up.

Q. What happens if an order of protection is violated?A. If a respondent or defendant violates (disrespects) an order of protection, the person with the order of protection can call the police, who can arrest the respondent or defendant. The person with the order of protection can file a "violation petition" in Family Court, talk with the district attorney's office (or other local prosecutor's office) or can go to the local Criminal Court. The person with the order of protection can choose to do all three of these things. Upon proof of the violation, the judge can make changes in the order of protection and put the respondent or defendant on probation. The judge can set a jail sentence.

Q. I moved to New York from the state that gave me an order of protection. Is the order of protection good in New York?A. An order of protection from another state is still good in New York. You can get help on how to register your order of protection in New York from your local Family Court, Criminal Court, or police station."

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/